Mendoza v. State, 43122

• Decision Date: 02 December 1970
• Docket Number: No. 43122,43122
• Citation: 460 S.W.2d 145
• Parties: Reyes MENDOZA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 145

460 S.W.2d 145

Reyes MENDOZA, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43122.

Court of Criminal Appeals of Texas.

Dec. 2, 1970.

Glenn Goodnight, Fort Worth, for appellant.

Frank Coffey, Dist. Atty., Truman Power, George McManus and Robert S. Williams, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the felony offense of possessing a firearm away from the premises upon which appellant lived after he had served a term in the Department of Corrections for the offense of burglary under Article 489c, Vernon's Ann.P.C. The punishment was assessed by the jury at one year.

The record shows that appellant was in possession of a pistol at the Lone Star Drive In in Fort Worth after he had been previously convicted in 1966 for burglary with intent to commit theft.

The indictment was presented on March 25, 1969.

Appellant contends that the trial court erred in refusing to grant an instructed verdict, because Article 489c had been amended and that part of the act making it an offense to carry a prohibited weapon after one had been convicted for the offense of burglary was repealed.

At the time of the alleged offense and the presentment of the indictment, Article 489c, V.A.P.C., as amended (Acts 1957, 55th Leg. Ch. 28, p. 50), read in part, as follows:

'Section 1. It shall be unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person.

'See. 2. Anyone violating any of the provisions of this Act shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one (1) nor more than five (5) years.'

Article 489c, as amended in 1969 (Acts 1969, 61st Leg. Ch. 653, p. 1951, effective September 1, 1969), reads, in part, as follows:

'Section 1. No person who has been convicted of a felony involving an act of violence may possess away from the premises upon which he lives a prohibited weapon, or a firearm having a barrel of less than 12 inches in length. 'Prohibited weapon' means any weapon specified by Article 483, Penal Code of Texas, 1925, as amended.

'Sec. 2. A person who violates any provision of this Act is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not less than two nor more than 10 years.'

The 1969 amendment eliminated any reference to those convicted of burglary. The indictment contained no allegation that the burglary involved an act of violence. The trial started on the 10th day of September, 1969, after the effective date of the 1969 Act.

There is now no statute in effect making it a felony for one who has been convicted for the offense of burglary to possess a prohibited weapon away from the premises upon which he lives.

The Legislature did not see fit to provide for a saving clause permitting prosecution under that part of the repealed statute. In fact, the only material change in the amendment to Article 489c, supra, was to eliminate burglary and still leave that part of the statute making it a felony for one to possess a prohibited weapon after having been convicted for a felony offense involving violence and to increase the penalty where violence had been involved in the previous offense.

Article 14, V.A.P.C., provides:

'The repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute.'

Article 15, V.A.P.C., cannot be used to support this conviction. It provides in substance that when a repealing statute substitutes a new penalty for the offense punishable under the repealed law such repealing statute shall not exempt from punishment a person who has offended against the prior law while it was in force. No new penalty was substituted.

In Hall v. State, 52 Tex.Cr.R. 195, 106 S.W. 149, the conviction was for the sale of game fish which had been taken on or about the 17th day of April, 1907, from fresh water lakes and streams of Harrison County.

The prosecution was brought under the Acts of the 30th Legislature which prohibited, among other things, the taking of fish by means of...